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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-FIELDSCR-12-00003047
In the Matter of
) File No.: EB-11-TP-0067
Geneva Walker
) NAL/Acct. No.: 20123270 0005
Licensee of Station WMAF
) FRN: 0003774288
Madison, Florida
) Facility ID No.: 5329
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 9, 2012 Released: July 9, 2012
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Geneva Walker, licensee of Station WMAF, in Madison,
Florida, apparently willfully and repeatedly violated Section 11.35(a)
of the Commission's rules (Rules), by failing to maintain operational
Emergency Alert System (EAS) equipment and failing to keep records
indicating why EAS tests were not received. We conclude that Ms.
Walker is apparently liable for a forfeiture in the amount of eight
thousand dollars ($8,000). In addition, we direct Ms. Walker to
submit, no later than thirty (30) calendar days from the date of this
NAL, a statement signed under penalty of perjury that Station WMAF has
operational EAS equipment installed.
II. BACKGROUND
2. On July 26, 2011, in response to a complaint that Station WMAF was not
in compliance with EAS requirements, agents from the Enforcement
Bureau's Tampa Office (Tampa Office) conducted an inspection during
normal business hours of Station WMAF's main studio and transmitter
location in Madison, Florida. The agents observed that the EAS encoder
and decoder were not connected to the station's transmitter. The
station's general manager stated that Station WMAF's EAS equipment was
taken out of service in December 2010. During the inspection, the
station's general manager attached the EAS encoder and was able to
send a test message. The general manager stated, however, that the EAS
decoder did not work. Station WMAF had no EAS logs or records of any
EAS test being sent after September 15, 2010 and no logs or records of
any EAS test ever having been received by Station WMAF.
III. DISCUSSION
3. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Failure to Maintain an Operational Emergency Alert System
4. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source unless the station
affirmatively requests authority to refrain from participation, and
that request is approved by the Commission. The EAS enables the
President and state and local governments to provide immediate
communications and information to the general public. State and local
area plans identify local primary sources responsible for coordinating
carriage of common emergency messages from the sources such as the
National Weather Service or local emergency management officials.
Required monthly and weekly tests originate from EAS Local or State
Primary sources and must be retransmitted by the participating
station. As the nation's emergency warning system, the EAS is critical
to public safety, and we recognize the vital role that broadcasters
play in ensuring its success. The Commission takes seriously any
violations of the Rules implementing the EAS and expects full
compliance from its licensees.
5. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, and attention signal
generating and receiving equipment are installed and operational so
that the monitoring and transmitting functions are available during
the times the station is in operation. "Additionally, EAS Participants
must determine the cause of any failure to receive the required tests
or activations specified in S: 11.61(a)(1) and (a)(2). Appropriate
entries indicating reasons why any tests were not received must be
made in the broadcast station log." On July 26, 2011, agents from the
Tampa Office observed that Station WMAF's EAS equipment was not
connected to the station's transmitter when the station was in
operation. The station's general manager stated the EAS encoder was
defective and the EAS equipment had been removed in December 2010.
According to the station's EAS logs, the last EAS test was sent
September 15, 2010 and no EAS tests had ever been received. The
station's EAS logs also contained no entries explaining why no EAS
tests had ever been received. Based on the evidence before us, we find
that Ms. Walker apparently willfully and repeatedly violated Section
11.35(a) of the Rules by failing to maintain operational EAS equipment
and failing to maintain complete EAS logs.
B. Proposed Forfeiture Amount and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for EAS equipment not
installed or operational is $8,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Walker is apparently liable for a forfeiture in the amount of
$8,000, which is consistent with other recent cases involving similar
facts.
7. We further order Ms. Walker to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury, stating
that Station WMAF has operational EAS equipment installed or setting
forth the timeframe for when the equipment will be installed. This
statement must be provided to the Tampa Office at the address listed
in paragraph 13 within thirty (30) calendar days of the release date
of this NAL.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Geneva Walker is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violations of Section
11.35(a) of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Geneva Walker SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
10. IT IS FURTHER ORDERED that Geneva Walker SHALL SUBMIT a written
statement, as described in paragraph 7, within thirty (30) calendar
days of the release date of this Notice of Apparent Liability for
Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central Region,
Tampa Office, 4010 W Boy Scout Blvd, Suite 425, Tampa, FL 33607. Ms.
Walker shall also e-mail the written statement to
SCR-Response@fcc.gov.
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Geneva Walker shall send electronic
notification of payment to SCR-Response@fcc.gov on the date said
payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted. When completing the
FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Tampa Office, 4010 W Boy Scout Blvd, Suite 425, Tampa,
FL 33607, and include the NAL/Acct. No. referenced in the caption.
Geneva Walker also shall e-mail the written response to
SCR-Response@fcc.gov.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to Geneva Walker at P.O. Box
776, Perry, FL 32348.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director,
Tampa Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 11.35(a).
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S:S: 11.11, 11.19, 11.41.
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
sources. 47 C.F.R. S: 11.21.
47 C.F.R. S: 11.35(a).
Id.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See, e.g., Upper Peninsula Communications Inc., Forfeiture Order, DA
12-750, 2012 WL 1702799 (Enf. Bur. rel. May 14, 2012) (imposing $8,000
forfeiture for failing to install EAS equipment); Walter M. Czura, Notice
of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 2285 (Enf. Bur.
2012) (proposing $8,000 forfeiture for failing to maintain functioning EAS
equipment); SCI Cable, Inc., Notice of Apparent Liability for Forfeiture
and Order, 26 FCC Rcd 12927 (Enf. Bur. 2011) (proposing $8,000 forfeiture
for failing to install EAS equipment); Spirit Broadcasting, Inc., Notice
of Apparent Liability for Forfeiture and Order, 26 FCC Rcd 10212 (Enf.
Bur. 2011) (proposing $8,000 forfeiture for failing to install EAS
equipment).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
11.35(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 12-1070
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Federal Communications Commission DA 12-1070